Andhra HC (Pre-Telangana)
T. Indira vs Municipal Corporation Of Hyderabad And ... on 20 November, 2001
Equivalent citations: 2002(5)ALT203, AIRONLINE 2001 AP 9
Author: N.V. Ramana
Bench: N.V. Ramana
ORDER N.V. Ramana, J.
1. Since these writ petitions are connected they heard together and are being disposed of by this common order.
Writ Petition No. 29837 of 1998:
2. This writ petition is filed by the owner of Flat No. 103 in "Sri Sai Sri Apartments", Moosarambagh, Hyderabad, bearing House No. 16-11-765. According to the petitioner, the respondent-M.C.H has permitted the builder to construct a complex, consisting of stilt plus three upper floors, to be utilised only for residential purposes, specifically mentioning in the permit that the stilt should be used exclusively for parking of vehicles and it should not be converted or used for any other purpose, and the builder has given an undertaking to that effect. In 1995, the petitioner and other flat owners were put in possession of the flats by the builder. According to the petitioner, the common area and parking area are unauthorisedly put to commercial use and encroached upon by the builder and the builder, deviating from the sanctioned plan, has constructed walls around the stilts, and respondents 3 to 5 have occupied the shops which are constructed in the space meant for parking, thereby depriving the parking area to the flat owners. Petitioner claims that even though she issued notices to respondents 1 and 2 (Commissioner, MCH and the Chief City Planner, MCH) informing them the above position, no action is taken by them.
3. The petitioner therefore filed this writ petition seeking a writ of mandamus directing respondents 1 and 2 to demolish the unauthorised constructions raised in the parking area of Sri Sai Sri Apartments situate at H.No. 16.11.765. Moosarambagh, Hyderabad, trespassed by respondents 3 to 5 with the help of the 6th respondent (builder) in view of the sanctioned plan 318/62 dated 14-12-1992 and also in view of Condition 11 (f) of G.O.Ms.No. 419. Municipal Administration Department dated 30-7-1998.
4. Writ Petition No. 29837/1998 was admitted on 2-11-1998. On 18-12-1998 when WPMP No. 36479/1998 came up for hearing, none appeared on behalf of the respondents and a direction was issued to respondents 1 and 2 not to regularise the constructions made by respondent No. 6 contrary to the sanctioned plan No. 318/62 dated 14-12-1992 till further orders.
5. None of the respondents in Writ Petition No. 29837 of 1998 filed counter-affidavits. On 9-10-2001, when this writ petition came up for hearing, it was directed to be listed along with Writ Petition No. 35899/1998, which is filed by the builder of the complex. That is how this writ petition (W.P. 29837/1998) is listed along with Writ Petition No. 35899/1998.
Writ Petition No. 35899 of 1998:
6. This writ petition is filed by the builder. The case of the builder is that their firm purchased a house in 650 square yards of site in the premises bearing H.No. 16-11-765, Moosrambagh, Hyderabad, from its owners and after construction of residential flats by demolishing the old house in the site, the flats were handed-over to the purchasers thereof. The petitioner states that, apart from the three floors constructed, leaving sufficient place in the ground floor for parking, generator room, servant quarters, six shops were also constructed. When the officials of the MCH threatened to demolish the structures in the ground floor, petitioner filed a suit O.S.No. 6/1995 in the Court of V Assistant Judge, City Civil Court, Hyderabad, and obtained temporary injunction restraining the MCH from demolishing the structures. The petitioner claims to have applied for regularisation of the construction of six shops in the ground floor, as per G.O.Ms.No. 419, Municipal Administration Department, dt. 30-7-1998 by paying the requisite fee, and that no action is taken so far by the respondent -MCH.
7. Hence, the petitioner filed this writ petition (WP 35899/1998) seeking a writ of mandamus declaring the notice dated 22-12-1998 issued by the 3rd respondent-Assistant City Planner. Circle No. 1, MCH, Hyderabad, as illegal and contrary to G.O.Ms.No. 418, Municipal Administration Department, dated 30-7-1998, and consequently to direct the respondents to regularise the constructions at premises No. 16-11-765, Moosarambagh, Hyderabad.
8. On 24-12-1998, Writ Petition No. 35899 of 1998 was admitted, and in W.P.M.P. No. 44253/1998, interim stay of demolition was ordered.
9. On behalf of respondents 1 to 3, the 3rd respondent-Assistant City Planner, Circle No. 1 MCH, filed counter-affidavit. It is stated that the permission of construction of stilt for parking plus 3 upper floors for residential purposes was granted, vide permit No. 318/62, dt. 4-12-92, in premises No. 16-11-765 situate at Moosrambagh in the name of Smt. Rousala Devi & two others and the builder has given an undertaking that the parking place will not be converted for any other use. It is stated that the petitioner/builder constructed seven shops in the stilt portion, which is meant for parking, and also changed the use of residential building against the Zonal Regulations 6-1-2 of 1981. The 3rd respondent stated that the suit O.S. No. 6/1995 is not restored after it was dismissed for default. It is stated that one of the occupants of the flats, filed W.P. No. 10189/97, and that writ petition was disposed of by a learned single Judge of this Court by an order dated 24-12-1997 with a direction to the MCH to take action against the serious deviations committed by the builder. The said order was confirmed by a Division Bench of this Court in Writ Appeal No. 71 of 1998. According to the 3rd respondent. G.O.Ms.No. 419, Municipal Administration Department, dated 30-7-1998, does not permit regularisation of unauthorised constructions made in parking spaces. It is stated that the MCH has initiated action against the builder long back, and that mere filing of application for regularisation will not disentitle the MCH from discharging its statutory functions, especially when the case of the petitioner/ builder could not be considered as per the provisions of G.O.Ms.No. 419 dated 30-7-1998.
10. The main contention of the Counsel for the flat owner (petitioner in Writ Petition No. 29837/1998) is that the builder has unauthorisedly converted the parking area into a commercial complex and because of this complex a lot of inconvenience is being caused to the petitioner and other residents of the flats and that in spite of the directions issued by this Court in Writ Petition No. 10189/97 and Writ Appeal No. 71/98, the respondent-MCH has failed to take any action in the matter. It is further contended that even though G.O.Ms.No. 419, dated 30-7-1998 does not permit regularisation of illegal or unauthorised constrictions made in the space meant for parking, the builder has filed an application under Building Regularisation Scheme (BRS) as per G.O.Ms.No. 419 dated 30-7-1998 and if the constructions made by the builder in the stilt portion of the complex are regularised under the Building Regularisation Scheme, the petitioner and other flat owners be deprived of their parking area.
11. On behalf of the builder (Petitioner in W.P.No. 35899/1998), it is submitted that already it has filed a civil suit O.S. No. 6/1995 in the Court of V Assistant Judge, City Civil Court, Hyderabad and temporary injunction is granted restraining the MCH authorities from demolishing the constructions made in the complex in question. It is submitted that even though the suit was dismissed for default, subsequently the suit is restored to file and in view of the same, there is no need to pass any orders in Writ Petition No. 29837/1998. He contended that the respondent-MCH is not justified in not finalising the application made by the builder under BRS scheme as per G.O.Ms. 419, dated 30-7-1998 in respect of the constructions made in the cellar portion, and a direction may be issued as prayed for in Writ Petition No. 35899/1998.
12. On behalf of the respondent-MCH, Sri Ghanta Ramarao, learned Standing Counsel for the MCH, appeared and submitted that the MCH authorities have initiated action against the builder, as per the order in Writ Appeal No. 71/1998 passed by a Division Bench of this Court, and at that stage the builder has approached this Court and obtained interim orders in Writ Petition No. 35899 of 1998. He further submitted that the MCH authorities will consider the representations, made by the flat owner as well as the builder, in accordance with law and in the light of the conditions laid down in G.O.Ms.No. 419, Municipal Administration Department dated 30-7-1998 and pass appropriate orders thereon as expeditiously as possible, and take further steps in the matter.
13. After hearing the learned Counsel appearing for the respective parties, and having regard-to the submissions made by the learned Standing Counsel for the Municipal Corporation of Hyderabad. I direct the respondent-MCH to pass appropriate orders on the representations, said to have been made by the builder as well as the flat owner (Petitioners in these writ petitions), in accordance with the conditions laid down in G.O.Ms.No. 419. Municipal Administration Department dated 30-7-1998 within a period of four weeks from the date of receipt of this order. Till then the respondent/MCH shall not take any steps to demolish the structures in question. In case MCH authorities find that the builder has violated the sanctioned plan, the MCH authorities are free to take appropriate action in the matter.
14. Subject to the above directions, the writ petitions are disposed of. No costs.